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Mercedes Samavi

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One of the most recent chapters in the ongoing EU cookies saga has come in the form of a recent ruling by the Court of Justice of the European Union (CJEU) in the Planet49 case. The CJEU ruled that:

(i) implied consent is not sufficient anymore, requiring website operators to seek active consent from users which cannot be obtained by means of pre-ticked boxes; and

(ii) any obtained consent will only be sufficiently informed if an average user can understand what cookies do and how they function.

The outcome of the case – while pivotal – does not come as a surprise considering the cookie developments in the EU over the past few years.

In 2003, when the current Privacy and Electronic Communications Directive (ePrivacy Directive) came into effect, the use of cookies and similar technologies was not as advanced as it is now and did not process users’ personal information in the same way and with such complexity. Sixteen years later, cookies and similar technologies have become an indispensable part of almost every business. The amount of useful details that companies learn about their users’ interests and internet behavior through such technologies is vast and seemingly unlimited. As you would expect with such rapid technological development, the EU data protection authorities (DPAs) have caught on that the technologies are a data goldmine.…
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One of the next big items in Europe will be the expansion of “ePrivacy,” (which, among other things, regulates the use of cookies on websites). While the ePrivacy reform is still being worked on by EU lawmakers, one of the items the ePrivacy Regulation is expected to update is the use of “cookie walls.” Recently, the Austrian and UK data protection authorities (DPAs) issued enforcement actions involving the use of cookie walls, albeit with different findings and conclusions.

Cookie Walls

A cookie wall blocks individuals from accessing a website unless they first accept the use of cookies and similar technologies. The practice of using cookie walls is not prohibited under the current ePrivacy Directive.

However, the European Data Protection Board (EDPB), the successor to the Article 29 Working Party, has issued a non-binding opinion that the use of cookie walls should be prohibited under new EU ePrivacy rules. The EDPB argues that cookie walls run contrary to the General Data Protection Regulation (GDPR): “In order for consent to be freely given as required by the GDPR, access to services and functionalities must not be made conditional on the consent of a user to the processing of personal data or the processing of information related to or processed by the terminal equipment of end-users, meaning that cookie walls should be explicitly prohibited.”

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iStock_000086819927_SmallWith 1.65 billion users on Facebook, 332 million users on Twitter and 400 million on Instagram, it is unsurprising that many companies are seeking to increase brand awareness and customer engagement by running competitions via social media. If you want to avoid attracting the scrutiny of UK regulatory authorities, however, you will want to ensure…

Is it stealing to take data without permission from a public website, or is it simply making use of resources that are made available to you? “Web scraping” or “screen scraping” is the practice of extracting large amounts of data from public websites using bots.

A recent case in the European Court of Justice has focused attention both on the intellectual property infringement aspects of scraping practices and on the potential for website owners to use their sites’ contractual terms and conditions to combat the scrapers.

Scraping is not new, but it has become increasingly widespread in recent years, fuelled by the rise in big data analytics and the popularity of price comparison websites. Indeed, in 2013, it accounted for 18% of site visitors and 23% of all Internet traffic. Scraping is not inherently bad: it can have legitimate uses, spur innovation and give companies with limited resources access to large amounts of data. However, unsurprisingly, many website operators do not like it. Not only are operators keen to protect their proprietary rights, but repeated scraping can also take a heavy toll on websites by using up bandwidth and leading to network crashes.

In the U.S., website operators have asserted various claims against scrapers, including copyright claims, trespass to chattels claims and contract-based claims alleging that scrapers violated their websites terms of use. In the EU, operators have tended to rely on intellectual property infringement claims against scrapers, but there has been little case law to provide guidance.

However, in January 2015, in a much anticipated decision, the European Court of Justice (CJEU) held that where a website operator cannot establish intellectual property rights in its database, an operator may still be able to rely on its website terms and conditions to prohibit scraping. This ruling may impact an increasing number of companies whose business models rely on mining data from websites and social media platforms without permission. On the other hand, it will be viewed positively by those data-rich businesses keen to protect and/or monetise their data.

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Introduction

In June of this year, we sent out an alert about the anticipated new UK copyright infringement exceptions. These exceptions were to be introduced based on the recommendations of the Hargreaves Review. Surprisingly, some of the exceptions had been dramatically pulled from the legislative slate at the last minute. However, the UK government has now upheld its subsequent promise to re-publish the statutory instruments for the infringement exceptions for (1) personal use, (2) parodies and (3) quotations, with new legislation on all three subjects that came into force on October 1, 2014.

Almost in parallel, a European ruling and an Advocate General opinion have helped to prepare for the arrival of the two statutory instruments, with commentary on (i) the scope of parody and (ii) in relation to personal use, the impact of copyright levies.

The New Legislation

Two new regulations have come into force, amending the Copyright, Designs and Patents Act 1988 (the “CDPA”) to include new exceptions for copyright infringement. The first – the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (the “Quotation and Parody Regulations”) – extends the provisions for quotations of copyright-protected works (having previously only been available for criticism and review), and creates a new provision for parodies.  The second regulation – the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (the “Personal Copies Regulations”) – concerns making copies of copyrighted works for personal use.

Quotation

From October 1, 2014, the free quotation of copyright protected works is no longer limited to reporting current events or to works of criticism or review. The Quotation and Parody Regulations, inserted into the CDPA as section 30(1ZA), now permit quotation for any purpose, provided that:

  • the work quoted has been made publicly available;
  • the use of the quotations constitutes “fair dealing” with the work;
  • the extent of a quotation is no more than is necessary for the purpose; and
  • the quotation is accompanied by sufficient acknowledgment to the copyright owner (unless this is impossible).

The UK Intellectual Property Office has stated that this amendment will help to save costs on copyright clearance, support free expression and align UK law with the rest of Europe. However, as anticipated in our previous alert, the Quotation and Parody Regulations do not provide a definition of “quotation”, or guidance as to how extensive a “quotation” is allowed to be. This may place undue pressure on the meaning of “fair dealing” as UK courts seek to define the scope of the exception.

Parody

The new exception for parodies allows fair dealing with a work for the purposes of caricature, parody or pastiche (section 30A of the CDPA) and provides that fair dealing with a recording or performance  (section 2A to Schedule 2 of the CDPA) for the purposes of parody does not infringe copyright conferred in the performance or recording. This change now means that the permission of the copyright holder will no longer have to be obtained, provided that the use of the original work is fair and proportionate.  This is good news for British comedians and artists, it would seem, unless, of course, it is their work that is being parodied.

However, an EU court ruling on parodies in September 2014 has already placed some restrictions on the new legislation. In Deckmyn v Vandersteen C-201/13, the Court of Justice of the European Union (the “CJEU”) defined a parody as something that evokes an existing work while being noticeably different from it and constituting an expression of humour or mockery. The CJEU also stated that national courts must strike a balance between copyright owners’ interests and mimickers, and that copyright owners have a legitimate interest in disassociating their work from a parody, if the parody involves a discriminatory message.

This creates a whole new checklist for UK courts to consider, alongside the usual fair dealing test. Judges will have to also hold a view on whether the parody (i) strikes a fair balance, (ii) differs noticeably from the original work, and (iii) is sufficiently humorous. In particular, the last of these requirements may worry budding parodists, who could end up having to justify their comedy in front of a very different audience than first intended.

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